Kenneth Anderson, a law professor at Washington College of Law, American University, Washington DC, and a member of the Hoover Task Force on National Security and Law, blogs on topics related to international laws of war, international law, related human rights topics, international NGOs, and the theory of the just war. (Mostly inactive these days, everything here is first draft and subject to changing my mind.)

Wednesday, June 29, 2005

(Update, Friday, July 15, 2005: See also Roger Bate's very critical review in the Weekly Standard, here (sub req'd).)

Jeffrey D. Sachs' celebrated new book, The End of Poverty, has been reviewed nearly everywhere, of course, and I've tried to keep up with reading them alongside the book itself. The two reviews I have found most interesting are found in the Economist magazine and in the Times Literary Supplement.

The Economist's (anonymous) review is particularly helpful to those unfamiliar with the field of development economics; it is a programmatic, hard-headed review, here. It is enthusiastic about Sachs, the book, and its recommendations, with some reservations (which I entirely share):

***IF JEFFREY SACHS, itinerant adviser to poor-country governments, scourge of the International Monetary Fund, head of Columbia University's Earth Institute, United Nations' expert of choice on third-world development, and much else besides, were ever to retire (an improbable scenario, admittedly) statistics would show a perceptible downward shift in global output. The man's productivity is staggering. No sooner has the UN published its huge new report on the Millennium Development Goals, drawn up under Mr Sachs's supervision, than the phenomenon is in print again. With typical moderation, Mr Sachs has entitled his new book, “The End of Poverty”.

The book is an unusual and in some ways slightly odd mixture of personal memoir, economics textbook and development manifesto. There are chapters of economic history and analysis. These serve as a lucid introduction to the theory and practice of development. Mr Sachs tells of how he learned his business as an adviser in Bolivia, Poland, Russia, India, China and Africa—a fascinating story in its own right. In its second half the book shifts to an extended argument for new approaches to confronting disease and extreme poverty in the developing countries, and especially for far more generous aid.

Aid can work, the book argues fervently, but you have to think big. Even when conditions are such that aid is likely to succeed (when standards of governance are adequate, when supporting policies are in place, and so forth) rich-country governments have been mean, fickle and short-sighted about aid. Find those cases where aid can work, says Mr Sachs, spend generously, and sustain it. This central point is persuasively hammered home.

To be sure, the virtues of the book vastly outweigh its failings, just as the virtues of Mr Sachs dwarf his. Book and man are brilliant, passionate, optimistic and impatient. But Mr Sachs is not, as he sometimes appears to think, the developing countries' only hope. And he tends too often to accuse people who disagree with him of bad faith. Many of his economic conclusions are contested. Some people who are less keen than he is to spend more on aid may care just as much about poverty. Not everybody who thinks that corruption is widespread in Africa, and that corruption renders aid ineffective, is racist. “Pessimism about Africans' ability to utilise aid is very deep, reflecting an amazing reservoir of deep prejudices. I have heard those prejudices for years and have come to expect them, always with sadness.”

Not just with sadness, actually: people who disagree with Mr Sachs also make him angry, weary and disgusted. The author believes he is fighting not merely error but also widespread immorality. That is an odd stance for a man to take, who has himself often been unfairly accused of caring nothing for the “victims” of his policies.

The book is mostly clear and hard-headed about what works in promoting economic development. But it is briefly marred by some pretty soft-headed stuff about the evils of unilateralism, the war in Iraq and the moral and intellectual failings of the Bush administration. Mr Sachs states these views as though they follow from his hard-learned economic wisdom—which of course, whether right or wrong, they do not. On the other hand, Mr Sachs is far too kind to anti-globalisation activists, applauding their fervour and conviction while gently disagreeing with their policy ideas, which in fact he regards as ignorant and ruinous (why not extend the same courtesy to the Bush administration?).

And, frankly, it is difficult to forgive his invitation to Bono to write the introduction to the book. Describing his experience of campaigning with Mr Sachs, the Irish rock singer recalls, “I would enter the world of acronyms with a man who can make alphabet soup out of them. Soup you'd want to eat. Soup that would, if ingested properly, enable a lot more soup to be eaten by a lot more people.” Sorry, even if it sells more copies of this otherwise outstanding book, publishing such drivel cannot be right.

***The second review is much more complicated in its approach. It appears in the Times Literary Supplement, June 24, 2005, No. 5334, pages 3-4, "Band of Hope: Players From the Past Whose Spirits Should Rule the G8," by Stein Ringen, Professor of Sociology and Social Policy at Oxford (currently available online here, although not necessarily permanently).

Ringen takes the Sachs' book together with a new book by Garth Stedman Jones, An End to Poverty?: A Historical Debate - and this move to consider the most contemporary issues in international development theory and practice in the context of the centuries long debate over poverty gives Ringen important space to consider Sachs' proposals and programme against, especially, the Enlightenment legacy of Tom Paine and Antoine-Nicolas de Condorcet. Paine and Condorcet, Ringen tells us, gave a counter theory, an Enlightenment theory of progress, to the assumption during pretty much the rest of human history that poverty is permanent. Or, as Jesus put it, "Ye have the poor with you always." Ringen says:

"Through human history, poverty has been seen as a normal, natural, obvious and unavoidable fact of life. A counter theory, though, emerged only 200 years ago when the idea of societies without poverty was invented. Poverty, it was suggested, is unacceptable and something that should and could be made away with. We are entitled to call that an invention. It was an idea that had not previously been thought. The inventors were Tom Paine in Britain and Antoine-Nicolas de Condorcet in France. They took their political inspiration from the great Revolutions in America and France, and their intellectual inspiration from Adam Smith, that champion of freedom and justice. A battlefield of ideas was thereby opened up between the old – poverty is obvious – and the new – poverty is unacceptable. Two centuries on we are still fighting the same battle ...

"Paine and Condorcet were evolutionary optimists and saw history, at least post-Revolution, as a march of progress. The elimination of poverty was for them, writes Gareth Stedman Jones in An End to Poverty?, “part of a pitched battle between enlightenment and the receding powers personified by the aristocracy and the established church”. Their invention contained not only an idea but also a programme. Poverty would be eliminated by a political management of the economy so as to redistribute its surplus to everyone. Both drew up detailed blueprints of what we now call the Welfare State."

It is the idea of the welfare state that Ringen draws out of Paine and Condorcet and deploys against Sachs. It is the most original move in the essay - and indeed the most original in any of the reviews I have read. It is also, it seems to me, the most originally wrong-headed. Sachs, Ringen correctly says, is concerned with economic development, the creation of opportunities for the poor. Aid, on this model, is a means by which to produce opportunities which the poor are then able to make use of. It is not, emphatically not, intended to be the redistribution of the welfare state; income transfer from rich to poor is not the end of development policy, but merely a means by which to create conditions by which the poor can leave poverty. Sachs, whatever the weaknesses of his programme, understands that global development strategy cannot be done on analogy with income transfers within a welfare state. The world is not Sweden. "Not even Sachs," Ringen correctly says, "has really accepted the [welfare state for the world] idea as Paine and Condorcet proposed it."

To my mind, this is precisely what recommends Sachs' approach, despite my many disagreements with the programme in its details. It is thus precisely what disturbs Ringen - Sachs has not drafted Beveridge's Report on Social Insurance and Allied Services (1942) that created the British welfare state. Hence Ringen's repeated concern that rich countries have not come close to meeting the supposed target of 0.7% GDP in official development aid - it is an indication of the unwillingness of rich countries to even begin a modest amount of income transfer from rich to poor at the official level. If, by contrast and contra Ringen, you start from the assumption that aid is a means to an end, then the 0.7% goal does not really mean very much - and for that matter, it was an arbitrary figure pulled out of the air back in the sixties and bears no relation to what development might actually cost. My feeling is that it is probably more than that, and Sachs would surely agree. But the point is that income transfer is not the point of a development programme.

Nevertheless, Ringen has written a compelling essay that is well worth reading, on two books that are well worth reading.

A final thought. Lurking behind Ringen's critique of Sachs on the basis of Paine and Condorcet is an unacknowledged premise - that there is no real difference between what goes on within a particular society and particular country and state, and what goes on in the world as a whole. Because Ringen admits of no principled difference, he thinks, therefore, that Sachs should be proposing a global welfare state as though the world were a society in which something like a global Beveridge report could make sense. The world is not unitary in that way, however, and on practical and ideal grounds it makes little sense to think of solutions such as the welfare state that are tied to, well, a state. Ringen nowhere acknowledges this issue in his own critique. (Cf. Michael Walzer, Spheres of Justice.)

Tuesday, June 28, 2005

The Times Literary Supplement ran in its June 3, 2005 issue, No. 5331, Page 24, an enlightening review by Robert Jackson, a former British MP, of three French books on France, Europe, and the referendum in France on the EU constitution:

Jackson's graceful account of the three books is a very useful exercise for American readers, trying to get a sense of the debate within France itself - the authors are all senior, credentialed members of the French elite - a socialist economics professor calling for "non," a socialist former minister calling for "oui," and the now famous Vicomte de Villepin, a neo-gaullist calling for "oui."

Jackson stresses that whatever the differences in their political conclusions, all the authors all share three fundamental assumptions: "[A]ll are agreed that Europe’s problem is essentially an institutional one – that the European project is the indispensable political project of the twenty-first century – and that France must have the dominant voice in the working-out of this project."

By "institutional," Jackson and the authors mean the "ever closer union" within unified, federal political structures, resulting in what Genereux describes (and all would agree to) as the "reinforcement of political cooperation and social harmonization from above." Genereux and de Villepin agree that the way forward is through closer union of the "hard core" original six states, pushing political and economic integration around the French-style social model, to cut off the possibility of further encroachment of the dreaded Anglo-Saxon market model. As Jackson puts it:

"[E]ven the sympathetic reader from outside France will ask, impatiently, what sort of economic policy all this new process should aspire to deliver. Généreux is clear – he wants an end to the European market economy. De Villepin, a typical foreign minister, diplomatically passes over the question. Guigou wants “a new growth pact” – a Keynesian reflation backed up by sectoral industrial policies. There must also be staunch resistance to “the winds of liberalism and diminution of the social”.

But [Guigou] notes apprehensively that these winds “are blowing ever more strongly in Europe and the world”, and she also remarksthat one of the reasons for the failure of economic co-ordination in the 1990s was that “the economic and financial ministers were . . . suspicious of positions which were too ‘political’ in relation to economic and financial orthodoxy”. In other words, despite the authors’ agreement about the importance of European institution-building must be put the fact that there is no similar agreement about what the European institutions should actually be doing. This uncertainty did not go unnoticed by the French electorate, and must have contributed to the No vote. What, after all, is the point of paying for a new car if you do not know where to drive it?"

The other crucial meeting of minds between these authors is the indispensability of the European project to the world as a whole, and France's indispensable role in leading it. The implications for European foreign policy are nothing short of - well, fantastical:

"The other big point on which all the authors agree is that “Europe” is an indispensable project, and that France is indispensable for Europe. Indeed, the two points are interrelated: the point of Europe is precisely that it is a French project, embodying, we are assured by the Vicomte de Villepin, “the values of 1789”. This became the chief selling point in the Oui campaign. But an important reason for the victory of the Non was that the French feel, quite realistically, that the terms of trade have now turned against them: that Europe has become less a vehicle for the export of France than for the import of the rest of the world into France.

This is certainly Généreux’s view. In “consecrating the market society”, the proposed Constitution enforces “the reign of international free exchange” and thus “organizes the economic and strategic impotence of Europe and its submission to the pax americana”. Although he expressly disavows any form of nationalism, there is no mistaking the Gallic flavour of his alternative Europe – anti-American, monocentric, protectionist, ripe for harmonisation par le haut.De Villepin is more explicit – even indiscreet – in his final chapter, where his rhetoric takes wing. “France’s place is at the head of Europe.” “More perhaps than any other country, France poses the question of the European model, social, international, cultural. We do not want a liberal Europe – which would signify the victory of the British vision of Europe as a mere market, as opposed to the political version which has always guided the Franco-German couple”. Europe must move rapidly to become a “power”, “because the great international poles are now being constituted around the American continent and the Asiatic world, [and] the European continent can play the pivotal role if it gives itself the means – especially an ambitious partnership with Russia”.

What heady vistas this conjures up, of a great renversement des alliances – of Europe calling in the Old World to redress the balance of the New. Does this include, one wonders, allying with Putin against the Ukrainians as well as the Chechens, and with the Chinese against Taiwan? Would it impose sanctions on Israel? De Villepin is not a details man, so he does not tell us. Only the negative is clear – he wants to mobilize Europe against America – perhaps even against the whole world of les anglo-saxons.

Compared with this bravura performance, Elizabeth Guigou is a model of sobriety. She asks, “que faire avec les États-Unis?”. The Americans inherit a gene of “messianism” from their “puritan English and Irish” ancestors. They are also prone to unilateralism (unlike the French). Europe must therefore “cease to align its policy with that of the United States”. It must develop a military and political presence independent of America so that the Americans will respect it as “a credible strategic actor” and be constrained to multilateralism. Meanwhile, together, “France and Germany have the capacity to draw the United Kingdom into their train”."

And Jackson's conclusion, regarding Germany, is worth noting:

"Meanwhile, the German side of the “Franco-German couple” looks set for a new government which will want to repair its relations with America and Britain, to look again at costly agricultural policy subsidies to France, and to follow the Anglo-Saxons and the Scandinavians in their successful, job-creating adoption of the more flexible and indeed “liberal” social policies. Jacques Généreux has prevailed in his campaign for a Non. Perhaps his fears will also be vindicated – that Europe is finally caught in “the liberal trap”, and that it is indeed too late for France to insist, “stop the world, I want to get off”."

Saturday, June 25, 2005

(Update, Friday, July 1, 2005: The Washington Post editorializes in support of Condoleeza Rice's call that UN reform not get hung up on what ultimately is likely to prove the least useful and most devisive and least achievable reform of all - enlarging the permanent members of the Security Council. Read it here. Thursday, June 30, 2005, A22.)

Kofi Annan has a long opinion piece in the Friday, June 24, 2005 Wall Street Journal, "United We Stand." (Here, sub. req'd.)

The fundamental point of the piece is to argue against the Hyde UN reform bill, which cleared the House this week (although it lacks corresponding Senate legislation at this point). That bill would condition half of US basic dues to the UN, representing 22% of the basic budget, on fulfilment of various UN reform measures. Most of those measures are part of either the Secretary General or the US Congressional Task Force (the Gingrich-Mitchell Task Force) already, although not all. What the Secretary General opposes - and in this was strongly joined by the Bush administration - is an automatic legislative club to chop off dues if the reforms are not achieved by a certain date. Rep. Hyde has responded by saying, in effect, that the UN only reforms itself under threat of something serious, and money is the only serious tool available; he also criticized high level State Department mandarins who "worship at the altar of the UN" (see my earlier post with quotes from his remarks in the Washington Times).

Annan is correct to say that:

"In Washington, the debate now centers on two documents which appeared last week: the report of the bipartisan Task Force led by former Speaker Newt Gingrich and former Senator George Mitchell, and the Henry J. Hyde United Nations Reform Act, adopted by the House of Representatives.

There is considerable overlap between the two prescriptions, as there is between both and the reforms that I myself have proposed -- or, where they are within my power, am already implementing. That is not surprising. The desire for change is widespread, not only in the U.S., but among many other U.N. member-states, and also many U.N. staff."

With regards to the differences between the approaches (and note that the Gingrich-Mitchell report does not actually say anything about withholding UN dues - it is highly improbable that the Task Force members [I was one of the experts working with the Task Force] could have agreed on language one way or the other), Annan says:

"Where there are differences -- not so much between the U.N. and the U.S., but between the Hyde Act and the other proposals on offer -- these relate essentially to two points: the method to be used to make reform happen, and the global context which makes U.N. reform so important.

For Mr. Hyde and his colleagues, reform can only be brought about by threatening a draconian and unilateral cut in the U.S. contribution to the U.N. budget.

I believe that approach is profoundly mistaken and would, if adopted by the U.S. government as a whole, prove disastrously counterproductive. It would break the reformist coalition between the U.S. and other member-states whose collective pressure could otherwise make these reforms happen.

The U.N. is an association of sovereign states, which agreed, when they ratified the Charter, to share the expenses of the Organization "as apportioned by the General Assembly." The scale of assessment, which determines the share borne by each member-state, is renegotiated every six years; and every year the General Assembly passes a resolution -- invariably supported by the U.S. -- enjoining all members to pay their contributions promptly, in full and without conditions.The way to make changes or reforms, therefore, is to negotiate agreement with other member-states.

As the Gingrich-Mitchell task force put it, "to be successful, American diplomacy must build a strong coalition including key member-states from various regions and groups . . . many of whom share America's strong desire to reform the United Nations into an organization that works." Such a coalition will not be built by one nation threatening to cut its own contribution unilaterally. Other states will not accept such a "big stick" approach.

Fortunately, the Hyde withholding proposal is not backed by the administration, or indeed by the task force.

Even more important, however, is the global context. The U.N. does not exist in a vacuum, or for its own sake. It is a forum in which all the world's peoples can come together to find common solutions to their common problems -- and, when they so choose, also an instrument with which to pursue those solutions."

***

As I said, the Task Force does not actually take a position on the dues question.

More interesting, however, is how Annan frames the vision of what the UN is. In this particular article, in this context, he frames it as an association of sovereign states.

In other contexts, however, especially if one goes back to his speeches around 2000, to the Millenium Forum and other meetings, especially NGO meetings, it is a much more supranational vision in which the NGOs are the "public" constituency of the UN. The UN becomes the forum not for the sovereign nation states, but instead for the "peoples of the world," unmediated by their sovereign states, but dealing with the UN through "global civil society."

(This particular vision of what the UN was supposed to be hit its high water mark around 2000, when Annan saw the opportunity to present the UN system (in its broadest sense) as the alternative to both rapacious economic globalization and the crazy anti-globalization protests of Seattle 1999 and elsewhere. Then 9/11 took place and, as the very intelligent (even if often wrong) French political commentator Dominique Moisi put it in the Financial Times, suddenly security was back on the table and with it the sovereign state. That left Annan and the high UN mandarins struggling yet again to figure out their role - and, as noted in Annan's comments below, the favored role at the moment is to mediate between the security demands of the rich world and the development demands of the poor world - a crazy conflation, especially if put in the context of terrorism, but more on that later.)

A third vision of the what the UN should be is found looking at newspaper articles (some of which appear earlier on this blog) describing what senior officials such as Malloch Brown see as UN reform. This vision (sometimes described as the "modernist" vision of UN reform) aims to get away from the UN being an association of member states, serving the will of member states, to become independent of (if not immediately "above," in the supranational sense) of member states, directly responsive to something called global public opinion, the international civil society community, and other non-sovereign state actors - and this is what, in this modernizing view, will deal with the problems of incompetence and corruption, which on this view essentially trace back to the malign influence of being an association of sovereign states. Acknowledging the many problems of a sovereign state association and its inherent tendency to incompetence and corruption, it is still all too easy to see why senior UN mandarins and bureaucrats would favor a vision of the UN and UN reform that took the question of legitimacy and accountability out of the hands of nation states including - oh, let us think who - the United States and its extremely nasty Congress, threatening to cut off money.

There is, of course, another way of thinking about UN reform - not very agreeable to UN officials and bureaucrats, and that is to reduce the scope for incompetence and corruption by reducing the aims, missions, vision, scope, and political aspirations of the UN itself. The UN modernizers are right - the sovereign state association model is an invitation to incompetence and corruption. What they don't acknowledge is that replacing accountability to sovereign states with accountability to some loose idea of a global public, or global civil society, or the UN itself is just as much an invitation to incompetence and corruption.

The real issue is that incompetence and corruption on a massive scale are essentially excused by the UN's many apologists because they see those as minor diversions in the long march toward a liberal internationalist dream of the UN as the instrument of global governance. The real way to make the UN work is to scale down those dreams and reduce the UN to discrete tasks measured by technical competence alone. Some of those discrete tasks will be intensely political - peacekeeping and in some cases peace enforcement in failed states, for example. But the grandiose aims - world peace through management by the UN, global governance, grand pacts between the global north and south mediated by the UN - those visions go out the window.

(Keep in mind that these are notes, and not final formulations on the subject.)

***Annan closes the article by going back to the theme of his own UN reform vision, the linking (in my view very dubious) of security and development, terrorism and poverty:

"Those are very serious threats to people in rich and poor countries alike. The failure of last month's review conference on the Nuclear Non-Proliferation Treaty to address them seems breathtakingly irresponsible. I hope the world's political leaders will now take up the issue, with much greater urgency.

To deal with such issues, we need, among other things, a stronger and more representative Security Council.

But the threats that seem most immediate to many people in poor countries are those of poverty, disease, environmental degradation, bad government, civil conflict, and in some cases -- Darfur inevitably springs to mind -- the use of rape, pillage and mass murder to drive whole populations from their homes.

We can only make progress if we address all these threats at once. No nation can reasonably expect cooperation on the things that matter to it most, unless it is prepared in return to help others with their priorities. And, as the U.N.'s own high-level reform panel pointed out, the different kinds of threats are closely interconnected. Neglect and misgovernment in Afghanistan allowed terrorists to find a haven. Chaos in Haiti caused attempted mass migration to Florida. And poor health systems in poor countries may make it easier for a disease like avian flu to spread spontaneously, or even to be spread deliberately, from one continent to another.So development and security are connected -- and both in turn are linked to human rights and the rule of law. The main purpose of my "In Larger Freedom" report was to suggest things that can and should be done, by all nations working together, to achieve progress on all these fronts and to make the U.N. a more effective instrument for doing so.

Decisions can be taken this September, when political leaders from all over the world meet at U.N. Headquarters for the 2005 world summit. Over 170 have said they will come, and President Bush is expected to be among them.

The stakes for the U.S., and for the world, could hardly be higher. The opportunity to forge a common response to common threats may not soon recur. It is in that context, and for that reason, that a reformed and strengthened U.N. is so badly needed."

***Annan is correct that the September summit is an important opportunity. It is not, however, a make or break event for the world - it is not even a make or break event for the UN, which will lurch along no matter what - and it is part and parcel of the too-high UN sense of itself which would represent what will just be, in the end, another meeting, perhaps productive, perhaps not, as a make or break thing for the whole planet. In its own minor way, such language is emblematic of what is wrong with the UN. (Compare the same sort of apocalyptic rhetoric in the language of EU senior mandarins before and, now, after the referenda.)

Which is yet another reason why the US needs a tough minded ambassador (representing US interests rather than fulfiling the Dana Milbank test of a good US diplomat, ie, one who serves the other side) - who, as it happens, is John Bolton.

What Annan does not acknowledge is that UN would be "strengthened" most not by expanding its already gassy and unsustainable vision of itself, but rather by reducing and tightening its scope, vision, aspirations, and expectations. That does not seem very likely to be the result, however, of the September summit.

The fundamental message of the book is soberly realistic and frankly pessimistic - Judge Posner concludes that there are strong limits, probably already reached, on what can be done to prevent serious surprise attacks, and that the various attempts to reform US intelligence may solve some problems while simultaneously making others worse.

With respect to the 9/11 Commission Report, Judge Posner says:

"In a misguided quest for unanimity, a determination to use the political calendar, and a public relations campaign to force precipitate action on weakly supported proposals for far-reaching organizational change, the 9/11 Commission, abetted by a stampeded Congress, a politically cornered President and a press that failed to subject the Commission's recommendations to the searching scrutiny that the modern press reserves for scandals, disserved the cause of national security in a dangerous era. It did so by successfully promoting a bureaucratic reorganization that is more likely to be a recipe for bureaucratic infighting, impacted communication, diminished performance, tangled lines of command, and lowered morale than an improvement on the previous system."

The book is especially harsh on the 9/11 Commission essentially buying into reforms as proposed by relatives of the 9/11 victims, as though their tragedies somehow made them expert in the security of the country as a whole.

"This gives rise to the following paradox: a surprise attack is likelier to succeed when it has a low antecedent possibility of success and the attacker is weak, because on both counts the victim will discount the danger and because the range of possible low-probability attacks by weak adversaries is much greater than the range of possible high-probability attacks by strong ones." (emphasis added)

(Update, June 29, 2005: See also this Washington Post opinion piece by William Odom, "Why the FBI Can't Be Reformed," June 29, 2005, here:)

"The problem is systemic. No one can turn a law enforcement agency into an effective intelligence agency. Police work and intelligence work don't mix. The skills and organizational incentives for each are antithetical. One might just as well expect baseball's Washington Nationals to win football's Super Bowl as believe the FBI can become competent at intelligence work.

Consider the different organizational incentives. FBI officials want arrests and convictions. They want media attention and lots of it. FBI operatives want to make arrests, to "put the cuffs on" wrongdoers. They have little patience for sustained surveillance of a suspect to gain more intelligence. They prefer to gamble on an early arrest and an intimidating interrogation that might gain a confession. To them, sharing intelligence is anathema. Intelligence is something to be used, not shared. Getting the credit is far more important than catching the spy or the terrorist.

Intelligence officials do not want public attention. They want to remain anonymous. They do not need arrest authority. They want to follow spies and terrorists secretly, allowing them to reveal their co-conspirators. Their reward comes from providing intelligence to others, not hiding it. They are quite happy to let the FBI make the arrests and take the credit."

Sunday, June 19, 2005

In an earlier post, I discussed what is the standard, black-letter law view of corporate liability in international law - it does not exist.

That earlier post (noting the latest Talisman decision) discussed the canonical sources of international law, and pointed out that there is neither juridical entity liability nor, for that matter, civil liability. (This was in the context of quoting from an expert affidavit I had prepared for corporate defendants in the latest, and perhaps last, of the Agent Orange cases.) The question is how, given the unpromising and indeed uncompromising nature of such international law materials, US district courts in a several Alien Tort Statute cases have apparently so easily come to the conclusion that of course there is corporate civil liability. I don't think this is right, as a matter of US or international law, but if one were trying to put the arguments in favor of corporate civil liability as a matter of international law, what would they be? What kinds of arguments are made in the court decisions, party and amicus filings, and academic literature?

Synthesizing down from that mass, and leaving aside the objections that I regard as fatal, the arguments in favor come primarily to three:

First, with respect to corporate liability, there is the approach Judge Weinstein takes in the Agent Orange litigation, and one which figures at least as background in many of the other court decisions. Even though Judge Weinstein says early on in his 230 page decision that he must adopt international law standards, by the time he reaches the corporate liability discussion, he nakedly abandons any reliance on international law and simply says that in American law corporations are subject to liability and it would be a socially really bad thing if it were any other way. It's both American-centric and result oriented all at once. it has the virtue, however, of clearly articulating what is going on, and is a sentiment that with greater or lesser forthrightness appears in some other ATS decisions.

Second, with respect to civil liability, the view seems to be that since the ATS speaks of a suit in tort, essentially once you have a violation of the law of nations, then American law will permit you to proceed in civil tort for damages even if the original violation had to be a violation of the law of nations which could not itself have been civil in nature, at least with respect to individuals, since individuals are subject only to criminal liability in narrow circumstances in international law.

This line of argument will work, however, only with certain kinds of cases against individuals under the ATS - for example, a war crimes violation by an individual giving rise to an ATS tort action. But it won't work for such things as alleging violations, even by an individual, consisting of damaging the environment unless one can (improbably) bring them under war crimes, genocide, etc. Much of what is alleged in the environmental field is in effect an effort to invent, under banner of the ATS, an international civil environmental law, a law which is essentially international tort and which can be directed against private juridical entities. But if you can't get the international predicate which, in the case of non-state-actors, and even if you allow that they somehow include corporations and not just individuals, must be criminal under the narrow categories of international criminal law - war crimes, genocide, etc. - then you can't get an ATS case going in the first place, even if it, once going, can proceed in US tort law.

Third, again with respect to corporate liability, the idea seems to be that the ATS is not purporting to establish international law as such, but instead a special body of ATS-international law, that can have its own special standards, limitations, extensions, etc., which lie in the hands of US judges to develop. ATS-international law just is different from international law, thus rendering the bemused stares of foreign legal specialists such as Greenwood irrelevant. It is, on this view, by its nature an amalgam of US and international law - in some respects, substantive international law but US procedures, although that doesn't really account for how US courts behave.

It is true that the ATS takes international law, on its very face, with certain peculiarities - particularly, the statute itself refers not to treaties, but to treaties of the United States, thus limiting in certain ways the body of international law that a court may consider. There is also an important question of the extent to which US federal courts must, whether for reasons of prudence or prudent respect for executive power in foreign policy or even from Constitutional mandate respect the firmly expressed interpretation of the executive as to the content of international law. And there might be an originalism question - one acknowledged even by the majority in Sosa - that the ATS must be limited to the actions contemplated with respect to international law at the time of its enactment - Blackstone's three conditions, and so on.

But those limitations aside, the language of the ATS refers to the law of nations and treaties of the United States as the applicable body of international law. It does not refer to any kind of special judge-created body of special-purpose international law for purposes of ATS cases. There must be a violation of the law of nations or treaties of the United States - subject to these special limitations - in order to get an ATS case going. That means, at a minimum, that the alleged violator of international law must be the kind of thing that can, under the law of nations or treaties of the United States, be a violator of international law.

Even after reading all these cases, pleadings, amicus briefs, and law review articles, I am still having unbridgeable problems in understanding how one leaps over that gap to arrive at the position that because US law has concluded that corporations must be subject to liability, the same must be true when US courts try cases that require as a predicate a violation of international law. This gap simply seems papered over to me in this voluminous literature - and with the growth of US cases that have already made that leap, no one bothers to make the argument de novo, but simply prefer to cite to the (logically flawed) cases that have gone before.

(Update, July 3, 2005: Here, btw, is a google search by someone who wound up on this blog on the topic of corporate liability for war crimes. Not precisely the same issue - if you talk about corporate liability for war crimes, you are speaking more narrowly than what I address in these posts, because you limit yourself to criminal acts, not civil acts. But it is a useful guide especially to what the buzz among the NGOs is about. One of the better articles in that list is this 2002 discussion of the Unocal standard on aider and abettor liability, here. Also this list of academic articles, at laborstandards.org, here.)

***Whether This War Was Worth It:In Analyzing Iraq, Consider the Effects of Having Done Nothing

By Robert KaganSunday, June 19, 2005; Washington Post, Page B07

Serious scholars still debate whether the Civil War was necessary, never mind the more obvious "wars of choice" such as World War I, the War of 1812, the Spanish-American War, the Korean War, wars in Vietnam and Kosovo, and the Persian Gulf War. To a certain brand of American isolationist, even World War II was unnecessary and counterproductive. So there is nothing remarkable about polls showing Americans wondering whether the recent Iraq war was "worth it." It is a great American myth, voiced by John Kerry last year, that the nation goes to war only when there is no question about the necessity of going to war. There's always a question. Even if the Iraqi insurgency disappeared tomorrow, George Ibrahim al Washington became president of Iraq and every liter of Saddam Hussein's onetime stockpile of chemical and biological weapons suddenly appeared in the desert, historians would still spend the next century debating whether the war was "worth it."

***Wars remain subjects of debate not just because their "necessity" is in doubt but also because their results are mixed. No war has produced unmitigated successes. The Civil War did not completely "free" African Americans, who remained oppressed for another century. World War I destroyed Europe, and helped pave the way for the rise of Hitler and the Soviet Union. World War II defeated Hitler but enslaved half of Europe behind the Iron Curtain and introduced the world to nuclear warfare. The Persian Gulf War drove Hussein out of Kuwait but helped produce the Osama bin Laden we know today. Add to that the millions of innocent lives lost, and the toll of these wars, generally regarded as "successful," is high. Does that mean those wars were not "worth it"? Demanding unmixed results and guarantees against the unintended consequences of war is as unrealistic as demanding absolute confidence in the "necessity" of going to war in the first place.

***One problem is that we always know what did happen as a result of war, but we never know what didn't happen. What if we had not gone to war in Europe in 1917, Korea in 1950, or even Vietnam in the 1960s? Would we have rued those decisions not to act as much as we now rue the decision not to drive Hitler out of the Rhineland in 1936? To answer such questions requires predicting, with only the conflicting and incomplete evidence available, what the world would have looked like had we not gone to war. We know what happened as a result of not going to war in 1936. We know, in particular, that British efforts to avoid war in 1936 and then in 1938 at Munich did not prevent war at all but only delayed it. Yet we can only try to guess what might have happened had Imperial Germany been allowed to conquer Europe, or had communist victories in Korea and Vietnam been allowed to stand unchallenged. A few years ago Michael Lind wrote a provocative book titled "Vietnam: The Necessary War," in which he argued that, even knowing what we know now, it was correct for the United States to fight a limited, losing war in Southeast Asia -- to "lose well," as he put it -- rather than allow a quick and easy communist victory.

To assess whether the Iraq war was worth it requires seriously posing the question: What would have happened if the Bush administration had not gone to war in March 2003? That is a missing but essential piece of the current very legitimate debate. We all know what has gone wrong since the Iraq war began, but it is not as if, in the absence of a war, everything would have gone right. Those who want to have this debate cannot simply point to the terrible toll in casualties. They have to address the question of what the alternative to war really would have meant.

There is not much dispute about what kind of leader Saddam Hussein was. Former secretary of state Madeleine Albright once compared him to Hitler, and the comparison was apt in a couple of ways. Hussein, as we will soon relearn in excruciating detail, had contempt for human life and no qualms about killing thousands of his own citizens and many thousands more of his neighbors' citizens, about torturing women and children and about using any type of weapon he could buy or manufacture to burn, poison, infect and incinerate political opponents and even entire populations, so long as they were too weak to fight back. This alone placed him in a special class of historical figures, a not irrelevant factor in determining whether his removal, even at the present cost, was worth it. Was it not worth at least some sacrifice to remove such a man from power?

Amore intriguing question is whether a decision not to go to war in 2003 would have produced lasting peace or would only have delayed war until a later date -- as in the 1930s. There is a strong argument to be made that Hussein would have pushed toward confrontation and war at some point, no matter what we did. His Hitler-like megalomania does not seem to be in question. He patiently, brutally pushed his way to power in Iraq, then set about brutally and impatiently making himself the dominant figure in the Middle East and the Persian Gulf, using war and the threat of war as his principal tools. In the early 1980s he invaded Iran and fought it to a bloody standstill for the better part of a decade. No sooner had that war ended than he invaded Kuwait. He fancied himself the new Saladin, much as Napoleon and Hitler had fancied themselves the new Caesar.

Many argue that, even if all this is true, Hussein was nevertheless contained through sanctions and no-fly zones and therefore could be deterred. Many advanced this argument before the war, too, even when they believed with as much certainty as the Bush administration that Hussein did have stockpiles of weapons of mass destruction. And, indeed, although for most Americans the question of whether the war was "worth it" revolves around the failure to discover the stockpiles that most believed he had, nevertheless the key issue, I believe, remains the same as before that failure: whether Hussein could have been contained.

For another fact not in dispute is that Hussein remained keenly interested in and committed to acquiring weapons of mass destruction, that he maintained secretive weapons programs throughout the 1990s and indeed right up until the day of the invasion, and that he was only waiting for the international community to lose interest or stamina so that he could resume his programs unfettered. This is the well-documented, unrefuted -- and unnoticed -- conclusion of both David Kay and Charles Duelfer. Whether Hussein would have eventually succeeded in acquiring these weapons would have depended on other nations' will and ability to stop him.

That is a question to which we will never have a definitive answer, and yet it is critical to any judgment about the merits of the war. The most sensible argument for the invasion was not that Hussein was about to strike the United States or anyone else with a nuclear bomb. It was that containment could not be preserved indefinitely, that Hussein was repeatedly defying the international community and that his defiance appeared to both the Clinton and Bush administrations to be gradually succeeding. He was driving a wedge between the United States and Britain, on one side, which wanted to maintain sanctions and containment, and France, Russia, and China, on the other, which wanted to drop sanctions and normalize relations with him. The main concern of senior officials in both administrations was that, in the words of then-national security adviser Samuel "Sandy" Berger, containment was not "sustainable over the long run." The pattern of the 1990s, "Iraqi defiance, followed by force mobilization on our part, followed by Iraqi capitulation," had left "the international community vulnerable to manipulation by Saddam." The longer the standoff continued, Berger warned in 1998, "the harder it will be to maintain" international support for containing Hussein. Nor did Clinton officials doubt what Hussein would do if and when containment collapsed. As Berger put it, "Saddam's history of aggression, and his recent record of deception and defiance, leave no doubt that he would resume his drive for regional domination if he had the chance." Nor should we assume that, even if the United States and others had remained vigilant, Hussein could have been deterred from doing something to provoke a conflict. Tragic miscalculation was Hussein's specialty, after all, as his invasions of Iran and Kuwait proved.

It is entirely possible, in short, that if the Bush administration had not gone to war in 2003, the United States might have faced a more dangerous and daring Saddam Hussein later on and felt compelled to act. So, in addition to whatever price might have been paid, certainly by the Iraqi people and possibly by Iraq's neighbors, for leaving Saddam in power, we might have wound up going to war anyway. There is the further question of what the entire Middle East would have looked like with a defiant, increasingly liberated Hussein still in power. To quote Berger again, so long as Hussein remained "in power and in confrontation with the world," Iraq would remain "a source of potential conflict in the region," and, perhaps more important, "a source of inspiration for those who equate violence with power and compromise with surrender." Whether historians judge the war favorably will depend heavily on whether post-Hussein Iraq does indeed provide a different sort of inspiration, but, again, the effort to change the direction of the region was surely worth paying some price.

Saturday, June 18, 2005

The Washington Times reports in its edition of Saturday, June 18, 2005 that the Hyde bill that would condition payment of part of US dues (half of basic dues) to the UN on fulfilment of a long list of UN reform conditions has passed the House. The White House had strongly objected, saying that it was better to leave such judgments in the hands of the Secretary of State. The full article is here:

***"The House yesterday voted to withhold half of its dues from the United Nations unless it dramatically changes its bureaucracy, peacekeeping missions and the rules for its human rights organizations.

It marked the second time this week the House defied the White House on a key priority, following Wednesday's vote against renewing one part of the USA Patriot Act.

House Republicans led the way yesterday, despite a White House plea for leeway to conduct foreign affairs and Secretary of State Condoleezza Rice's request for flexibility in deciding whether the dues should be withheld.

"When it comes to sanctions against the United Nations for failing to reform, if you leave it to the discretion of the State Department, you're plowing in the sea," said Rep. Henry J. Hyde, Illinois Republican and chief sponsor of the bill. "Let's begin real reform of the United Nations -- a monumental task, a long road ahead -- let's begin it here and now, June 17, right in this room."

The vote of 221-184 reflected a discontent among American voters with the United Nations, which has been buffeted by a kickback scandal in the Iraqi oil-for-food program and embarrassments such as seating countries that violate human rights on its human rights commissions. The vote also was a rejection of what Mr. Hyde called "a mindset in the upper realms of diplomacy that worships at the altar of the United Nations."

U.N. Secretary-General Kofi Annan criticized the bill, saying through a spokesman that with-holding dues is not "a productive route" to reform and could jeopardize his own proposals, expected to be discussed in September. But even those who voted against the bill yesterday -- most Democrats and a handful of Republicans -- endorsed the call for reforms and for withholding dues. Most of them supported an alternate version that allowed the secretary of state a waiver.

The bill lists 46 specific steps the U.N. must take, including: establishing an independent oversight board that can review all operations; prohibiting nations the U.N. has condemned for human rights abuses from serving on human rights bodies; and demanding major bureaucratic reforms. If the secretary of state cannot certify either that 32 conditions have been met by Sept. 31, 2007, or all 46 have been met by the next year, half of U.S. dues would be withheld.

The U.S. contribution this year will be $442 million, or about 22 percent of the United Nations' annual $2.05 billion budget. In addition, the United States this year will contribute about $2.5 billion to voluntary efforts like peacekeeping and popular programs with independent budgets, such as UNICEF and the World Food Program. Those would not be affected by the bill, though no new peacekeeping missions may be undetaken unless immediate reforms are put in place.

Rep. Tom Lantos, California Democrat and chief sponsor of the alternative legislation that failed yesterday, said some of the reform goals simply aren't achievable by the deadline. He also said the bill could prevent the United States from taking part in peacekeeping missions to prevent genocide.

And Rep. Christopher Shays, Connecticut Republican, said the majority's bill would be playing into the wishes of "evil minds" in the U.N. who want to see dues withheld because it gives them another reason to attack the United States.

But Rep. Mike Pence, Indiana Republican and co-sponsor of the main bill, said this was the only way to restore Americans' faith in the United Nations. "This was never about bullying the U.N., this was never about trying to dismantle the U.N. The [bill] was about taking a tough love approach to restoring the credibility and integrity of the United Nations in the 21st century," he said.

The administration has strenuously opposed the bill but has not threatened a veto.

"The United States pays its dues," said Anne W. Patterson, acting ambassador to the United Nations, on Thursday.

There is no companion bill in the Senate right now, so House Republicans plan to attach the measure to the foreign relations authorization bill later this year as a way to force the Senate to address it.

Mr. Pence said public support can push the measure through. "The only folks we have on our side are the overwhelming majority of the American people who are hung up on the notion it's their money, and they should decide, not diplomats, how their tax dollars are spent," he said. "If the American people engage on this issue, the president will sign a U.N. reform act with teeth."

I highly recommend this New Republic review by Thomas Nagel of Jeremy Rabkin's defence of sovereignty, here. (Photo of Rabkin.)

Jeremy Rabkin, political scientist at Cornell and someone I am pleased to count as a friend, has written a very strong, very powerful defense of the ideal of sovereignty and the nation state as the fundamentally legitimate power and political structure in the world, in his Law Without Nations: Why Constitutional Government Requires Sovereign States (Princeton UP), and I recommend it equally highly. Nagel gives Rabkin an exceptionally clear and fair-minded assessment. Like Nagel, I have reservations about the harsh language and, indeed, contempt that Rabkin sometimes shows to those opposed to his views. Yet Rabkin is fundamentally right. And, with some tinkering about particular judgments, such as the International Criminal Court, Nagel acknowledges that the robust multilateralism of democratic sovereigns, rather than liberal internationalism seeking to move toward supranationalism and the demise of sovereignty, is the best way of reconciling the values of a global common market and democratic accountability, which, unlike the common market, faces sharp constraints on its ability to ramp upwards to ever larger territories and dissimilar populations. This is a remarkable admission for Nagel, who it seems to me has been viscerally in the camp of liberal internationalism for a long time.

Of course, there is a movement to retrench among liberal internationalists, recognizing genuine difficulties with the project in some cases, and wanting to have one's cake and eating it too, in others. I have discussed Anne-Marie Slaughter's A New World Order extensively on this blog - it seeks a practical reconciliation of the problems of global governance while acknowledging the undesirability of the world government project. I have problems with its solution - a love affair with the undemocratic, unaccountable methods of the EU. Nagel, with good reasons, put Slaughter's book on his books of the year list; I think he, too, tends to favor some way of reconciling his own substantive views of the reach of international law and regulation with at least the outward form of the sovereign democratic state. Although this review gives hints of that, it goes a long ways to acknowledging the demands of democratic accountability.

It seems to me that the no votes in France and Holland must be causing at least some of the more thoughtful liberal internationalists to ask themselves whether there isn't something to the problem of democratic accountability in the EU, after all, and whether it really is the model to seek to carry to the rest of the world. Or so I hope.

Friday, June 17, 2005

I've just finished reading the newly released decision in Talisman Energy v. Presbyterian Church of Sudan (plus other parties), by Southern District of NY judge Denise Cote. I'm not sure where to find it online; I was sent a pdf. Bottom line is that Talisman, which had lost in earlier rulings in this ATS case, sought relief based on the the Supreme Court decision in Sosa v. Alvarez-Machain and the Second Circuit in Flores v. Southern Peru Copper Corp. Judge Cote denied relief, stating that neither of those decisions altered the findings of earlier courts that corporate liability could be found under international law.

It is true that various US district courts have ruled in ATS cases in favor of corporate liability - Judge Weinstein did in the Agent Orange litigation in which I participated as an expert on international law for the defendant corporations (discussed earlier on this blog). I find the basis for this conclusion unfathomable on the basis of international law itself, as distinguished from the highly idioyncratic interpretations given it by US judges, and then repeated and amplified by other US judges. I am not the only one puzzled by this - British international law authority Christopher Greenwood, for example, has raised exactly such questions, as has Yale law school's Michael Reisman. Nonetheless, the self-amplification of US courts citing each other for authority as to the content of international law continues apace, on the basis of nothing other than what these courts extract and then amplify from each other and in response to moralizing pressures from well-organized, long-term thinking litigators such as the Center for Constitutional Rights and other NGOs.

My own view of corporate liability in international law - first, the question of whether corporations, as distinguished from individuals, can be subjects of liability and, second, whether there exists in international law a concept of civil, rather than a very limited body of criminal, law with respect to individuals - is found in my expert affidavit in the Agent Orange litigation before Judge Weinstein (note: the footnote links don't work properly):

***1. As a general proposition, international law imposes obligations solely upon states. The proposition is authoritatively stated in a leading treatise, Oppenheim’s International Law:“States are the principal subjects of international law. This means that international law is primarily a law for the international conduct of States, and not of their citizens. As a rule, the subjects of the rights and duties arising from international law are states solely and exclusively, and international law does not normally impose duties or confer rights directly upon an individual human being, such as an alien or an ambassador.[1]

Even areas like international human rights law, which confer rights upon individuals, still only impose obligations on states.[2]

2. The only real exception to this general rule is international criminal law, which imposes obligations, as opposed to rights, upon individuals. Although international criminal law (which includes the laws of war pertaining to war crimes and grave breaches, as well as genocide and crimes against humanity) imposes obligations on non-state actors, the only type of non-state actors on whom it imposes obligations are natural individuals. International law does not, in the context of international criminal law or elsewhere, impose obligations or liability on juridical actors or artificial persons such as corporations.

3. The gradual development of individual criminal liability in the post-war period (with the greatest leaps forward beginning in the 1990s, well after the Vietnam War) does not create a precedent for corporate liability, for at least two reasons. The first is that even international criminal law is addressed only to natural individuals, and not to artificial persons such as corporations. Second, international criminal law is addressed to criminal liability rather than civil liability. For both of these reasons, individual criminal liability provides no precedent for corporate civil liability.

4. Individual versus corporate liability. Of the five international criminal tribunals established beginning with Nuremberg, none has provided for corporate criminal primary or secondary liability. The Charter of the Nuremberg Tribunal established procedures for the trial of persons who, “whether as individuals or as members of organizations”, committed certain crimes.[3] While several German businessmen and industrialists were tried at Nuremberg, those trials were exclusively of individuals as directors and officers of companies, and the record contains no suggestion that corporations could themselves incur criminal liability.[4] Likewise, the International Military Tribunal in Tokyo only permitted individuals to be prosecuted.[5] This position had not changed by the Vietnam War.

5. Indeed, this position has not changed in contemporary, post-Vietnam War international law. Even today, international law recognizes no form of corporate liability. The ICTY, for example, has jurisdiction only over natural persons; Article 6 of its Charter provides that it shall “have jurisdiction over natural persons pursuant to the provisions of the present Statute.”[6] Likewise, Article 5 of the Statute of the International Criminal Tribunal for Rwanda (ICTR) provides that the ICTR shall “have jurisdiction over natural persons pursuant to the provisions of the present Statute.”[7] And Article 25(1) of the Rome Statute of the International Criminal Court (ICC) provides that the court shall have jurisdiction only over natural persons.[8] The proposal was indeed put forward in negotiations to include juridical persons in the jurisdiction of the ICC, but it was consciously rejected because, in part, there are “not yet universally recognized common standards for [private entity] liability.”[9]

6. Criminal versus civil liability. Although international law in narrow circumstances does provide for individual criminal liability, it does not generally provide for civil liability – not even for individuals, let alone for corporations. In modern times, the only exception to this general rule is a novel provision of the Rome Statute of the ICC which came into effect in 2002. Article 75 of the Rome Statute provides, in a section dealing with reparations to victims, that the “court may order reparations” to be paid by individual defendants. Accepting such reparations as essentially civil in nature, Article 75 was recognized to be innovative and departure from past practice.[10] Thus, civil liability of non-state actors – individual and corporate – is not generally a part of international law today, and certainly did not exist at the time of the Vietnam War.

7. No corporate liability in weapons conventions. The absence of any precedent for corporate civil liability is reinforced with respect to weapons and armaments by the fact that the leading weapons treaties have imposed obligations only upon states, not juridical entities. The first modern weapons treaty, the St. Petersburg Declaration banning certain exploding bullets, is about use only and imposes obligations only on states, and that pattern is followed throughout the history of treaties governing the use of weapons as well as arms control. The 1925 Geneva Protocol, although it came about in the course of an interwar conference on disarmament and arms control, is solely about the use of certain weapons, not their production or sale by private actors, and it imposes obligations on states only.[11] Neither the 1993 Chemical Weapons Convention[12] nor the 1972 Biological Weapons Convention[13] – treaties dealing comprehensively not just with use but also with production – impose obligations on corporate actors; they instead confine themselves to addressing state actors. The weapons treaty that would have been most likely to have addressed the issue, the 1997 Ottawa Convention Banning Landmines – which comprehensively prohibits all use, production, sale, stockpiling, and transfers of antipersonnel landmines – likewise imposes obligations only on states.[14]

While some would regard this failure of international law to impose obligations on corporations and juridical entities as a serious gap in the law, in my view, it actually performs a useful function. My experience in monitoring the laws of war and experience in international campaigns to ban such weapons as landmines has strongly taught me that, from the standpoint of controlling behavior in war and armed conflict, including the weapons used, it is better to place the burden directly on states (or, in the case of civil war, on the parties to a conflict). The executive branches of states are the only actors with the plenary regulatory power and machinery to make and enforce policy among private actors. It is superficially attractive to believe that accountability is maximized by allowing corporations to be pursued in such venues as courts for violations of the laws of war or of weapons treaties, but in my estimation that is not the case. The result, in my experience, tends to be fragmentation of responsibility. Accountability tends to be diluted as states allow courts to deal – more precisely, are happy to outsource the problem by letting courts deal – with such issues as though they were ultimately about corporations rather than about state policies and practices. States sometimes actually seem to feel that they are morally off the hook if legal action is directed against corporations. But the buck has to stop someplace if there is to be accountability, and it is frankly better, in my view, for it stop with states in order to have a single, visible actor to hold accountable, whether legally or politically.

[1] Sir Robert Jennings and Sir Arthur Watts, 1 Oppenheim’s International Law 16 (9th ed., 1992).[2] See, e.g., Restatement (Third), vol. 2, Part VII, Introductory Note at 144 (although international law “governs primarily relations between states … Increasingly, international human rights agreements have created obligations and responsibilities for states in respect of all individuals subject to their jurisdiction”) (emphasis added); § 701 (“A state is obligated to respect the human rights of persons subject to its jurisdiction”) (emphasis added); and § 702 (defining customary international law of human rights in terms of state violations: “A state violates international law if, as a matter of state policy, it practices, encourages, or condones” certain behavior) (emphasis added). And this is notwithstanding the caution earlier raised about the Restatement (Third) being overly permissive in the development of human rights law as custom. See supra note 29.[3] Nuremberg Charter (Charter of the International Military Tribunal), 8 August 1945, art. 6, U.N.T.S. vol. 82, 279[4] See, e.g., United States v. Krupp (“The Krupp Case”), 9 Trials of War Criminals 1327 et seq.; United States v. Flick (“The Flick Case”), 6 Trials of War Criminals 1187 et. seq.; United States v. Krauch (“The Farben Case”), 8 Trials of War Criminals 1081 et. seq.. Confusion sometimes arises over the fact that the Nuremberg Tribunal was able to impose individual criminal liability based solely on membership in entities such as the SS and the Nazi party. Even leaving aside that the SS was an institution of the German state and that the Nazi Party was fully integrated into the totalitarian state – and thus neither were “private” actors in the sense of a private business corporation – the Nuremberg trials imposed no liability on the entities as such, but instead imposed liability on individuals for their membership. Indeed, the tribunal stated that: “Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.” International Military Tribunal for the Trial of Major War Criminals, Judgment of 1 October 1946, reprinted in 41 Am. J. Int’l L. 172, 221 (1947).[5] Charter of the International Military Tribunal for the Far East (Tokyo Charter), January 19, 1946, as amended April 26, 1946, art. 5, T.I.A.S. No. 1589 (“The Tribunal shall have the power to try and punish Far Eastern war criminals who as individuals or as members of organizations are charged with offenses…”)[6] Statute of the International Tribunal for the Former Yugoslavia, Security Council Resolution 827, 48 UN SCOR (3217th mtg), UN COD S/Res/827 (1993), 32 I.L.M. 1203.[7] Statute of the International Tribunal for Rwanda, Security Council Resolution 955, 49 UN SCOR (3452nd mtg), UN Doc S/Res/955 (1994), 33 I.L.M. 1598.[8] Rome Statute of the International Criminal Court, adopted July 17, 1998, UN Doc A/Conf.183/9 (1998), at Article 25(1). The United States has not ratified the Rome Statute.[9] See Kai Ambos, Article 25: Individual Criminal Responsibility, in, Commentary on the Rome Statute of the International Criminal Court 475, 477-78 (Otto Triffterer ed., 1999)[10] See David Donat-Cattin, Article 75: Reparations to Victims, in, Commentary on the Rome Statute of the International Criminal Court 965, 966 (Otto Triffterer ed., 1999).[11] 1925 Geneva Protocol, supra note 9 (defining obligations accepted by the “High Contracting Parties”)[12] Convention on the Prohibition of the Development, Production and Stockpiling and Use of Chemical Weapons and on Their Destruction, 32 I.L.M. 800 (1993) See, e.g., art. 1 (phrasing each obligation as “Each State Party to this convention undertakes ...” and “Each State Party undertakes…”)(emphasis added).[13] Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction, 10 April 1972, 1015 U.N.T.S. 163 (entry into force 26 March 1975). See e.g., art. 1 (phrasing each obligation as “Each State Party to this Convention undertakes ...”)(emphasis added).[14] Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction, Sept. 18, 1997, 36 I.L.M. 1507 (hereinafter the “Ottawa Convention”) See e.g., art. 1 (phrasing each obligation as "Each State Party undertakes never under any circumstances to ...")(emphasis added). Even the prohibitions on production, sales, and transfers, which of course might involve private corporations, are addressed to states, which then have treaty obligations to carry out the provisions through domestic legislation and regulation. The United States is not a party to the Ottawa Convention.

***(Update, July 3, 2005: Here is the ASIL summary of the new Talisman decision:

"U.S. District Court for the Southern District of New York: Presbyterian Church of Sudan et al. v. Talisman Energy, Inc. (June 13, 2005)

The U.S. District Court for the Southern District of New York (“the Court”) denied the defendant’s motion for judgment on the pleadings.

One of the key issues in dispute between the parties was whether corporations could be held liable under customary international law for violations of jus cogens. Jus cogens norms include the prohibition on genocide, torture, slavery, crimes against humanity and extrajudicial killing. The plaintiffs, who are current and former residents of Southern Sudan, alleged in their complaint that they were victims of genocide, crimes against humanity and other violations of international law as a result of acts perpetrated by the Canadian energy company, Talisman Energy, Inc (“Talisman”) and the Government of Sudan (“Sudan”). Talisman moved for a judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. Talisman contended that, in accordance with the standards set forth in recent Second Circuit and Supreme Court decisions, there was insufficient evidence that customary international included corporate liability for grave human rights violations, or for secondary liability for aiding and abetting or conspiracy to commit serious human rights abuses. In particular, Talisman argued that since the district court’s 2003 decision in Presbyterian Church of Sudan et al. v. Talisman Energy, Inc.244 F. Supp. 2d 289 (S.D.N.Y. 2003), in which the judge held, inter alia, that corporations may be held liable under international law for violations of jus cogens norms, more recent decisions such as the Supreme Court decision in Sosa v. Alvarez-Machain, 124 S. Ct 2739 and the Second Circuit decision in Flores v. Southern Peru Copper Corp., 406 F.3d 65 narrowed the scope of permissible claims under the Alien Tort Claims Act.

Citing Flores, Talisman argued that customary international law, defined as “those clear and unambiguous rules by which States universally abide, or to which they accede, out of a sense of legal obligation and mutual concern,” could not include corporate liability for human rights violations in view of the fact that there was no treaty or international tribunal decision imposing such liability. Talisman further claimed that the ICTR and ICTY Statutes did not reflect customary international law as these statutes were created under special circumstances.

The Court disagreed, citing the ICJ decision in Military and Paramilitary Activities in and Against Nicaragua, noted that “in order to deduce the existence of customary rules, … it is sufficient that the conduct of States should, in general, be consistent with such rules, and that instances of State conduct inconsistent with a given rule should generally have been treated as breaches of that rule.” The Court also held that the ICTY and ICTR Statutes and the decisions of their Tribunals confirm the principle that customary international law prohibiting violations of jus cogens norms such as genocide applies to private actors in addition to state actors. The Court held that the Supreme Court in Sosa v. Alvarez-Machain explicitly contemplated the existence of corporate liability under customary international law.")

David C. Hendrickson offers a sophisticated defense of moral realism in just war theory - taking on Walzer and others who criticize realism as essentially merely prudential. The title is "In Defense of Realism: A Commentary on Just and Unjust Wars," and this is the abstract:

"A significant portion of Walzer's Just and Unjust Wars is an argument "against realism." While Hendrickson applauds Walzer for his examination of the just war tradition, he nevertheless asserts that Walzer has characterized the tradition of political realism in a misleading way. Not simply the moral atheism it is portrayed to be, realism recognizes the moral reality of war while emphasizing state security and independence as the most important factors for the protection of citizens and the continuity of the political community. Indeed, Hendrickson identifies many realist aspects of Walzer's own moral arguments. He takes issue, however, with Walzer's treatment of intervention, self-determination, and the legitimate aims of war, stating that Walzer's framework is exceedingly permissive and ambiguous in these areas. Hendrickson concludes that the use of such a just war theory may lead to significant problems in the post-Cold War world."

The article is from Ethics and International Affairs, Vol. 11, 1997, a symposium on Walzer's Just and Unjust Wars with many interesting articles. The link gives only the abstract; there is a $5 article charge.

Eugene Kontorovich, of George Mason law school and visiting at University of Chicago law school, has a fascinating short article in Green Bag on the origins and meaning of the famous phrase, now cliche, "a decent respect to the opinions of mankind," in the opening paragraph of the Declaration of Independence. The short version? That phrase does not mean what Justice Breyer seems to think it means. Read it on SSRN, here.

(I wish I had seen this article while I was writing my own article on foreign law in US constitutional adjudication for Policy Review, which I have talked about in earlier posts.)

(Update, June 18, 2005: Opinio Juris has an excellent discussion with Peggy McGuinness, Roger Alford, and Eugene Kontorovich on the Kontorovich article. Here is the link directly to Kontorovich's response to McGuinness; scroll back to get the beginning of the thread.)

Wednesday, June 15, 2005

The Wall Street Journal editorial page notes today, June 15, 2005, a new report by a Republican congressional group calling for annual scrutiny by the State Department, Defense Department, and others, of the ICRC and its performance with respect to neutrality, adherence to its mandate and agreements with the US, etc. I do favor this kind of annual report, although I do not favor - and have said here repeatedly - at this point threatening to cut US donations to the ICRC. Too many people in humanitarian emergencies depend on that aid and the ICRC as the vehicle to deliver it. I think there are ways to put real pressure on the ICRC - and I favor real pressure on the ICRC - without threatening, at least at this point, its core humanitarian relief funding.

(Update, Saturday, June 18, 2005: The president of the ICRC, Jakob Kellenberger, responds to the RPC report, in this AFP story, here. With respect to charges that the ICRC leaked reports to the press and that it compared US detention facilities to the Nazi camps, Kellenberger issued a denial:

"Contrary to what is stated in the document, the ICRC has never compared US soldiers to the Nazis and the ICRC has never leaked to the public or the media any of the confidential reports submitted to the US authorities."

I myself do not actually believe this. The evidence that the ICRC person visiting the US detention facility used such language seemed to me prima facie persuasive back when it was first reported, and an ICRC spokesperson at the time acknowledged that the staff person had been replaced. The ICRC being the legalistic organization that it is - well, it can be Clintonesque in its use of language, and I would prefer to hear Kellenberger say flatly that not merely the "ICRC," but no member of its staff, past or present, etc., etc. As for the issue of leaks, I know that the ICRC continues to say that the leaks came from people in the US government itself and the ICRC was merely questioned about them afterwards - that, too, seems to me an unlikely factual account.

More generally, I continue to hold the view that the US should bifurcate its disputes with the ICRC on detainees and the war on terror from its funding of the ICRC for humanitarian purposes. There are ways to put pressure on the ICRC without threatening its humanitarian relief funding, and the US should be using them, aggressively, yet without threatening core funding. Among these should be demands that the ICRC quit framing its analysis in terms of 1977 Additional Protocol I, as the United States has never accepted it as a treaty and does not accept the ICRC's view that it as a whole has become customary law. The United States should also take the opportunity to reject as binding on the United States the view of customary law found in the new ICRC study, just published, and which is even more expansive in many ways than Protocol I - the ICRC will gradually start pushing the view that the study is an accurate statement of customary law, although the US has never agreed to that view, and then announcing in its reports and statements to the press yet another set of (tendentious) ways in which the United States is supposedly in violation of international law.

Kellenberger also says a number of striking things about the nature of humanitarian neutrality. These I am still digesting - I am not sure if it represents a shift in ICRC thinking about humanitarian neutrality or not. Or whether it merely reflects Kellenberger looking for rhetorical ways to defend his organization, without saying anything genuinely interesting about its views on neutrality. I have long been interested in the concept of humanitarian neutrality, and am looking to extend the discussion I began in an article about UN and ICRC humanitarian neutrality and inviolability in this Harvard Human Rights Journal article, at SSRN here.)

(Update, Saturday, June 18, 2005. The Wall Street Journal editorial page said this, on Saturday, June 18, 2005 (although it appeared in the print newspaper a few days ago):

The International Committee of the Red Cross gets special access to prisons around the world as the neutral observer body designated by the Geneva Conventions. But for more than three years now the ICRC has abused that position of trust to wage an unprecedented propaganda war against the United States.

Leaked ICRC reports have described conditions at Guantanamo Bay, Cuba, as "tantamount to torture" because indefinite detention is stressful. And just last month the ICRC's Washington office broke its confidentiality agreement with the U.S. government to fan the flames created by Newsweek's false Quran-abuse story.

Fortunately, Capitol Hill is starting to notice. A study released Monday by the Senate Republican Policy Committee says the ICRC has "lost its way," and suggests annual reviews be conducted by the State, Defense, and Justice Departments to certify that the organization truly adheres to its stated principles of "neutrality, impartiality and humanity."

In particular, the study raps the ICRC for its efforts to "afford terrorists and insurgents the same rights and privileges as [uniformed] military personnel" by misleadingly pretending that a radical document called Protocol 1 is settled international law. This causes the ICRC to "inaccurately and unfairly accuse the U.S. of not adhering to the Geneva Conventions."

U.S. taxpayers are the largest contributors to the ICRC's budget ($233 million, or 26%, in 2003). They have a right to expect an honest interpretation of the Geneva Conventions for that money, not more leaked reports that will be spun to give aid and comfort to al Qaeda.

Note this piece by Scot Lehigh in the Boston Globe suggesting that the euro may be in trouble following the collapse of "ever closer union." I would have thought that it was exaggerating matters - still, over the weekend, I had long conversations about the French and Dutch elections with a very astute French journalist, the top editor of a leading French business/finance/economics magazine. He took me quite by surprise by telling me that he thought the euro was in trouble - and, moreover, that in the name of democracy (not rational economics, he took pains to emphasize), he had voted ... "non."

(Update, Sunday, June 19, 2005: Martin Vander Weyer has a terrific article in the Spectator - "You Can't Bank on the Euro," Spectator, 11 June 2005, but unfortunately behind a subscriber wall.)

(Update, Monday, June 20, 2005: Irwin Stelzer has an excellent Daily Standard piece on how uncertainty over the future of the euro is leading a "flight to quality" among central banks, away from the gradually building policy of replacing dollar reserves with euro reserves, and back to dollar reserves. The effect is good for the US economy in the short term as, once again, foreign central banks are underwriting American monetary policy. Here.)

I am pleased to note the appearance of the Congressionally-mandated United States Institute of Peace Task Force on UN Reform report, released today in Washington DC by the two c0-chairs of the Task Force, Newt Gingrich and George Mitchell. The report can be found here. I was one of the experts, on the section on poverty reduction and economic development. This kind of document is inevitably a consensus production, and so of course I don't subscribe to everything in it. Still, I think it is a very respectable, very commendable set of recommendations, and I hope that it will be read widely and especially taken into consideration by Congress.

Another of the experts, Ann Florini, Brookings Institution, offers a discussion here on current bills in Congress that would seek to promote UN reform. She is highly critical of Rep. Hyde's bill, which would condition US funding on certain kinds of reform. Although I think the threat to withhold funding from the UN core budget is a blunt stick to be used only with caution, I do not agree with Florini that it is necessarily counterproductive, even at this point. I have mixed feelings about it. I will address this in more detail later. But Florini's discussion is well worth reading, even if one comes to different conclusions. To see an argument the opposite direction - one with which I tend to agree, although not on everything - see this piece by the Heritage Foundation's Brett Shaefer, here.

I have strong doubts that the UN is reformable; still, the next two or three years are the moment to try. Moreover, what the various parties think constitutes "reform" can be polar opposites, so that "reform," even if it took place, could seem to me worse than un-reform.

(Update, June 22, 2005: Tod Linberg has a good opinion piece on the Task Force report - Tod was one of the experts and principal drafter of the section on preventing genocide and mass atrocities, in the Tuesday, June 21, 2005 Washington Times. Newt Gingrich and George Mitchell, the Task Force co-chairs, lay out the main conclusions in this June 22, 2005 USA Today op-ed, here. Thanks RCP.)

Monday, June 06, 2005

James G. Lakely of the Washington Times has a useful story on AI USA backing away - now that they have got the useful bump in press coverage, memberships, and donations - from its press release charges of gulags, etc. Thanks to RCP. Read it here. Excerpt:

***The head of Amnesty International's American branch yesterday acknowledged that he "doesn't know for sure" what is going on at Guantanamo Bay prison, although Amnesty International's secretary-general has called the terrorist prison run at a U.S. military base in Cuba a "gulag."

However, William F. Schulz defended the description made last week by Irene Khan, saying on "Fox News Sunday" yesterday that America's "archipelago of prisons throughout the world" are "similar in character, if not in size" to the Soviet gulags, where millions of political prisoners were killed.

"I don't believe [the charges] are irresponsible," said Mr. Schulz, the executive director of Amnesty International U.S.A. "I've told you the ways in which I think that [there are] analogies between the Soviet prison system and the United States."

Pressed to cite concrete evidence that Secretary of Defense Donald H. Rumsfeld and Attorney General Alberto R. Gonzales are the "architects" of "systematic torture" at the prison, Mr. Schulz could produce none.

"We don't know for sure what all is happening at Guantanamo and our whole point is that the United States ought to allow independent human rights organizations to investigate," Mr. Schulz said, adding that Amnesty International was careful to use the word "alleged" when accusing high-level Bush administration officials.

***(Update, Monday, June 6, 2005. A couple of other interesting articles. One is David Bosco, Equivalency Test, at the New Republic Online (reg. req.), here. Bosco, a senior editor of Foreign Policy magazine, is no fan of Guantanamo, and offers a straightforward, objective comparison of Guantanamo and the Soviet gulag, using Anne Applebaum's Pulitzer winning account. Then there is John Leo, in US News and World Report, here, talking about media bias that reveals itself in the stories that the media do not tell - he notes that very few in the media publicized Amnesty's call for the arrest by foreign governments of senior US government officials - presumably because the media thought it was so crazy that it would undermine the credibility they themselves seemingly wanted to confer upon Amnesty. Leo might also have added the claim of Latin American style "disappearances," also in AI SG Irene Kahn's press release.)

(Update, Friday, June 17, 2005. Heather MacDonald, the Manhattan Institute, challenging the "torture narrative" in the media, here, at National Review Online. As I've said in posts on MacDonald earlier, I think she underplays the extent of abuse that still falls well short of torture, but her point is well taken. And the Durbin Nazi remarks, here, here, and Donald Rumsfeld's response, here.)

(Update, Saturday, June 18, 2005. More reaction on Gitmo, from RCP. Pavel Litvinov, a former Soviet dissident from the Gulag now living in the US, while critical of US policy, rejects the Gulag characterization, here in the Washington Post. Senator Jon Kyl counter-attacking against Democratic calls to close the camp, in RCP commentary, here.)

(Update, Sunday, June 19, 2005: Mark Steyn on the Durbin Nazi-Stalin-Pol Pot comparisons, here; also in a separate article, here.)